Comment: Breyer’s legacy is his respect for practical law

Breyer’s approach reflects a measured and modest view of the judicial role in constitutional democracy.

By Jenny S. Martinez / Special To The Washington Post

Among the many important contributions Justice Stephen Breyer has made to our legal system is his pragmatic focus on how the law works in the real world for ordinary people.

When I was a law clerk for Breyer, he had a rule that his opinions should have no footnotes (legal citations in the text were permitted). This was a fairly shocking policy. Most lawyers love footnotes, the perfect place to tuck in random caveats and muddy the waters.

But Breyer didn’t write just for the lawyers, or at least not the ones who love footnotes. His approach was driven by a belief that the Constitution belongs to “we the people,” as stated in its preamble; and that the people ought to be able to understand what the Supreme Court is saying.

Although Breyer was never a trial judge, he worried about whether fancy theories would actually work when district courts tried to apply them in ordinary cases. “But is that practical?” was one of his most frequent questions. Judges, he wrote, should consider “practical consequences … valued in terms of constitutional purposes.” At heart, he was an idealistic pragmatist, with deep faith in the rule of law and the institutions of our constitutional democracy.

While his faith has been in our unique constitutional system, part of Breyer’s pragmatism also involved engagement with law beyond America’s borders. Other recently retired justices, such as Anthony Kennedy, were known for their global interests, but Breyer has been particularly clear, in both his judicial opinions and his 2015 book, “The Court and the World,” in explaining why he thought this was important. Breyer’s approach echoed the advice of Judge Learned Hand, who famously said that “the spirit of liberty is the spirit which is not too sure that it is right.”

In one 1997 case about whether state officials could be asked to help implement federal laws, Breyer’s dissent noted that other countries had resolved similar federalism questions in exactly the opposite way from the majority. Maybe there are “relevant political and structural differences between their systems and our own,” he wrote. But “their experience may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem; in this case the problem of reconciling central authority with the need to preserve the liberty enhancing autonomy of a smaller constituent governmental entity.”

In other words, they might provide a reality check for the question: “But is that practical?”

While the most heated discussions about foreign law have involved constitutional cases, a large chunk of the court’s docket involves statutes and regulations. Breyer argued that because so many legal issues today — from antitrust to intellectual property to criminal law — involve cross-border matters, U.S. courts cannot just ignore the rest of the world.

In this sense, paying attention to international law was one piece of his overarching judicial philosophy. Breyer’s focus on pragmatism was not an excuse to substitute personal political or policy judgments for legal principle, or undermine democracy by importing foreign ideas. Rather, it was a way of being transparent — and therefore accountable to the citizenry — about how the court resolves ambiguities in legal texts and weighs the practical consequences of its decisions.

Breyer’s approach reflects a measured and modest view of the role of judges in a constitutional democracy. It stands in contrast to the more activist approach of judges who adhere to all-encompassing theories such as originalism, a philosophy that purports to find clear answers to 21st-century questions in 18th-century history but often uses questionable historical research to obscure modern policy judgments; or textualism, which sometimes pretends that there is just one indisputably correct reading of vague and broad phrases such as “due process of law” or “cruel and unusual punishment.”

For Breyer, the Constitution’s text and its original meaning (to the extent that can be accurately determined centuries later) are natural starting places, but honesty demands that we admit they often are insufficient to resolve concrete cases today. After all, there were no cellphones or internet when the Framers decided to protect the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

One of the geniuses of a common-law legal system such as ours is that it can accommodate such innovations. Judicial precedents accumulate slowly over time, reflecting the views of many judges and the application of law in different factual contexts. It is part of why our constitutional system has endured and evolved for centuries amid dramatic technological and social change. Precedent constrains judges from willy-nilly enacting their own individual policy preferences. But this method of constitutionalism allows for healthy and gradual evolution over time, in concert with the democratically elected branches of government and the people who are alive today, not just those who had a vote in 1789. At a moment when stare decisis — respect for precedent — is in doubt as the court contemplates overturning many long-standing decisions in the name of grand judicial theories such as originalism, Breyer’s pragmatic respect for stability stands as an important model.

Jenny S. Martinez is dean of Stanford Law School, where she is also the Richard E. Lang professor of law.

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